SalemNews.com, Salem, MA

September 12, 2012

Salem loses trash case

Judge throws out ruling that allowed for expansion of transfer station

BY TOM DALTONSTAFF WRITER
The Salem News

---- — SALEM — Mayor Kim Driscoll’s plan to clean up the polluted transfer station on Swampscott Road suffered a major setback yesterday when a judge overturned a decision by a city board.

Superior Court Judge Howard Whitehead threw out a 2009 ruling by the Salem Board of Health, which approved an agreement between the city and its trash hauler, Northside Carting, that would have allowed for a significant expansion of the transfer station.

In exchange for Northside Carting’s pledge to clean up the old incinerator site, the city agreed to allow the average daily amount of material trucked there to increase from 100 to 400 tons, with a maximum of 500 tons on peak days.

The deal also called for demolition of the existing transfer station building and construction of a new facility.

The judge’s decision appeared to rest on the application process.

The Board of Health approved a request for a “minor modification” of a permit for the transfer station. Whitehead ruled that the city and trash company should have applied for a “major modification,” which would have triggered a lengthier review, because this was a significant expansion requiring a new building.

Not long after the health board’s decision, an appeal was filed by a group of neighbors, headed by Arthur Theophilopoulos, owner of Young World Academy, a day care center and preschool. They raised concerns about the increased truck traffic and the expansion of the waste transfer business.

The transfer station currently handles construction and demolition debris. Under the new agreement, it would have been able to bring in municipal waste from area communities.

“I think this is a victory for the public health and a victory for homeowners and businesses in the area,” said Carl Goodman, the lawyer for the plaintiffs. “Had this facility been expanded as planned, it would have had a significant and adverse impact on their property values.

“The primary responsibility of the Board of Health is to protect the public health, and in this case, in our opinion, the Board of Health chose to make health secondary to political desires,” said Goodman, a former health board chairman in Marblehead.

He added: “This was something the mayor wanted.”

Driscoll said the city filed for a minor modification “under the guidance” of the state Department of Environmental Protection, which has been pressuring the city to clean up the site for decades.

“I’m concerned about the decision just because the site is city-owned and it still needs to be cleaned up,” she said. “We are under a consent order from the DEP,” and the estimated cleanup cost is $1.4 million.

“I do know the clock is ticking and the building’s condition is not getting any better,” she said. “We have to come up with a solution to resolve this. We’re just trying to avoid having the taxpayers foot the bill.”

Driscoll said the city will talk with the DEP and review its options.

A Northside Carting official said he expects the decision will be appealed.

“We’re obviously disappointed with the outcome and disagree with the decision,” said Bill Thomson, president of Northside Carting.

Echoing Driscoll, he said his company filed for a minor permit modification after conferring with the DEP, the regulatory agency that oversees this process.

“The judge decided it was a major modification,” he said. “I don’t quite understand that, since the regulatory agency in charge of this called it a minor modification.”

Even if the decision had gone in the city’s favor, this project still had major hurdles to clear. A two-thirds vote of the City Council is needed to sell this nearly 9-acre property.

Driscoll had hoped to sell the land because the city faces potentially large fines for not cleaning up a polluted site, which opened in 1960 as a solid waste incinerator and converted to a transfer station in 1975. Under the agreement, Northside Carting was going to pay for the cost of capping, or covering the ash.

In addition, the trash company had agreed to pay the city nearly $250,000 in annual taxes, a community fee and other payments.

After hearing the case last month, Judge Whitehead issued his ruling Monday.

Tom Dalton can be reached at tdalton@salemnews.com.